The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1887-05-05

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not.
The first line of decisions seems to pro-
coed upon the idea that a quasi property
remains in the material man, or upon the
principle that the party who has enhanced
the value of the property by his work
should have security therein. The quasi
property idea Is fiction, and enhancing
the value has nothing to do with it, be-
cause lien is good for work contracted
for, even if it is a positive injury to the
property. In order to construe the stat
ute on this subject it is not necessary to
resort to fctions. 70 furnish materials
for the construction of building, and to
furnish materials which enter into the
construction are very different things.
The material man has fulfilled his con-
tract and delivered the materials when
they pass from his control and are dealt
with at the option of the owner of the
building. The owner may sell the ma
terial or trade it, and the material man
cannot interfere. This construction OF
the statute will give lien in some cases
where the material is not delivered. II may
be more convenient to have the material
somewhere else than on the ground where
the building is. There may be place
prepared for it where it is less in the way.
This is not the case of mere purchase of
material for the erection of a house. In
the nature of things work must be done
away from the building, and if the owner
forces the contractor to desist before he
can incorporate his work in the building,
he certainly does not lose his lien. man
might employ different parties to differ
ent kinds of work; would not the stone
cutter be entitled to lien?
Appellee was entitled to lien upon the
work he was doing. The question is not
as to the delivery of the stone, but as to
the labor upon it.
The other questions raised are minor,
except the order of the court to pay the
surplus proceeds, over and above the
amount sufficient to pay appelees claim
to Lawson, Smith & Co. for their equity
of redemption had been sold to appellants.
The judgment will, at the cost of the ap-
pellee, be so reformed as to decree this
surplus of proceeds to the appellants.
In other respects it will be affirmed
Maggie Sprague ct ais. VS.. j. B. Haines,
from Coleman county. Opinion by
Gaines, A. j.
Appellee brought this suit to recover
against appellants as heirs of w. p.
Sprague, deceased, for a contract made
with said Sprague by appellant to remove
clouds from the title to GER ain lands, for
which he was to receive one-half. The
contract was by parol, and that appellee
had done his part, ETC., as to one half of
the land, and brought suit for half of it,
or one-fourth of the whole. He recov
cred a Judgment for an undivided one.
fourth of three of the tracts described In
the petition. The main question is,
whether the contract comes within the
statute of frauds. In Anderson VS.. Pow
ers, 80 Texas, 213, a similar agreement
was upheld, but we are of the opinion
that the correctness of the ruling, as ap-
plicable to the facts of that case, cannot
be maintained. The court held in that
case that there was no title in the appel
liant; but, if there was none, how did she
recover 10 a court of justice? There
have been several decisions since that one
on the subject. A contract by which
one agrees to locate a certificate etc, is
held to be contract for the joint acqui-
sition of land, and does not come within
the statute of frauds. In the same way is
an agreement by one to convey one half
the land the former should acquire. In
none of these cases was there any title or
interest in the land in either party when
the contract was made.
The commissioners of appeals, in a
case similar to the one under considera-
ton, decided that the contract was in
capable of enforcement.
If the facts are as alleged, appellee is
entitled to recover for money spent and
for his services in proper proceeding in
proper form. As all the parties live in
Pennsylvania, it is doubtful if judgment
can be had without personal service, un-
less there is an attachment levied on the
property. No question of this character
is raised and we do not deem it proper to
give an opinion in advance. The other
questions raised are important. The
Judgment is reversed and the cause re-
manded.
The Day Land and Cattle case VS.. the
State, was submitted on briefs and oral
arguments yesterday.
RECORDERS COURT.
d. H. L. Hunter, keeping open doors on
Sunday between the hours of 8 and
O'Clock; fined 800 and costs.
Jim Gay, intruding on private prem
ises; fined $40 and costs.
Dan Ferguson, disturbing the peace:
fined so and costs.
COUNTY COURT.
In this court there were several pleas of
guilty in gaming cases.
State VS. Chas. Hathaway, carrying pis-
toll acquitted.
State VS.. Georgia Frazier; set for to-
day at 10 O'Clock.
State VS.. Chas. Cuneo, two cases; set for
tomorrow at 10 a. m.
State VS.. Jno. Assmann; set for to-day
at 2 o'clock.
All city cases set for Friday, the 9Th,
at 10 a. m.
DISTRICT COURT.
State VS.. Robert Braxton; verdict of
not guilty.
State vs. Tom Seay, theft; jury out.
First National bank VS.. j. R. B. Fair
childs ct al; judgment for plaintiff for
$2,555.37 and $255.53 attorneys fees.
State VS.. Thumm, motion to quash in
dictment under argument.
I.